Health Laws Impact LGBT Folks

Impact of Health Law on LGBT Individuals and Families is the title and subject of a 1½ hour continuing legal education program to be held on Friday, October 12, 2012, as sponsored by the Allegheny County Bar Association, through its Health Law Section, in partnership with its LGBT Rights Committee, which was created in March, 2012.  Highmark underwrites the program.

A panel of experts representing perspectives from across the industry will present an assessment of the new federal healthcare reform law, FMLA [Family and Medical Leave Act], Advance Directives and Health Care Decision Making, and Hospital Visitation and Consent to Treatment for Minors and will discuss the impact of these laws on the LGBT community.

Much of this information will also apply to other non-traditional families.

This program will serve healthcare providers and their attorneys who need to be aware of the unique characteristics and challenges of LGBT individuals and families, as well as other nontraditional families, in the healthcare setting.

LGBT (lesbian, gay, bisexual, and transgender) folks, or individuals in "non-traditional" families, have drawn greater attention during the past twenty years.  In the healthcare delivery and decision-making settings, their personal expectations and interpersonal relationships often become ignored or overridden by application of statutes that grant "default" rights to others, defined by bloodline or traditional legal relationships.  

Awareness, forethought, and implementation are recommended for LGBT folks, their families, and their attorneys to overcome such hurdles.  Absent attention, planning, and documentation, an unwanted, unnecessary crisis might result.

On June 19, 2012, the federal Health and Human Services Department, through its LGBT Issues Coordinating Committee, issued its 2012 Report, entitled "Improving LGBT Health" (PDF form).  Its introduction repeated a national philosophy:

It’s at the heart of the American dream: the belief that if you work hard, if you're responsible in your community, if you take care of your family, then that’s how you should be judged.  Not by what you look like, not by how you worship, not by where you come from, and not by whom you love. 

This belief means ensuring that LGBT Americans have the same protections and opportunities as their neighbors, colleagues, and family members.  And over the last three years, this Administration has undertaken a broad agenda to do just that.”

That report highlighted two concerns, which should be addressed under Pennsylvania law at the ACBA's program:

Of critical importance for LGBT advocates is the CMS position on medical decision-making, allowing LGBT couples greater flexibility to make care decisions for their loved ones.

Similarly, it is important that LGBT patients and their families are more recognized in health care service delivery environments and approaches, including the development of a culturally competent service standard to be followed by healthcare professionals and organizations. * * *

The presenters at the ACBA program will be:

• Robert Wolf, Esq. (Advance Directives, POLST, Healthcare Decision Making) Tener, Van Kirk, Wolf & Moore, PC; 
• Elisabeth J. Poggi, Esq. (Advance Directives, POLST, Healthcare Decision Making) Buchanan Ingersoll & Rooney PC; 
• Sheryl Kashuba, Esq. (Hospital Visitation and Consent to Treatment for Minors) UPMC Health Plan; 
• Vikram Mangalmurti, Esq. (Accountable Care Act) VP Highmark Office of Healthcare Reform; and
• Mark Phillis, Esq. (Family and Medical Leave Act) Littler Mendelson, PC

The program will be held on Friday, October 12, 2012, in the ACBA Conference Center Auditorium, 920 City-County Bldg., 414 Grant Street, Pittsburgh PA, with registration and lunch from 11:30 AM – 12:00 Noon, followed by the presentations until 1:30 PM.

For ACBA members, the cost is $25, and for others, $60.  Registrations can be made online through the ACBA.

Organ Donation: Questions & Myths Discussed

On Friday, August 31, 2012, WITF-FM (Harrisburg, PA) broadcast a Radio Smart Talk program 50 minutes long, entitled What questions do you have about organ donation? 

The initial guest of host Scott Lamar was John Green, Director of Community Relations for the Gift of Life Donor Program, of Philadelphia, PA.  He first focused on questions and myths regarding organ donation.

For example, a study released earlier this year found that about a quarter of the respondents believed doctors wouldn’t try to save the life of someone designated as a donor.

Others thought that they couldn’t donate because they have a history of illness or that they were too old to donate.

About 80,000 people across the country are awaiting organ transplants. Some will die while they’re still waiting.

Later in the program, personal experiences were shared by a Middletown man who received a transplanted kidney, and by another Pennsylvanian whose son awaits a suitable liver transplant.

WITF's web page devoted to this particular program lists the following useful resources on the topic:

• Organ Tissue Donation Awareness Education Project - Intermediate Unit 13 (717-606-1795)
• Center for Organ Recovery and Education, of Western PA (800-366-6777 or 412-963-3550)
• Gift of Life Donor Program, of Eastern PA (800-366-6771)
• United Network for Organ Sharing (UNOS) (888-894-6361)
• Health Resources and Services Administration, Division of Transplantation (301-443-7577)
• Department of Health and Human Services, Organ Donation
• National Minority Organ Tissue Transplant Education Program (800-393-2839)
• National Coalition on Donation (804-782-4920)
• National Marrow Donor Program (800-627-7692)
• Donate Life-PA

Other resources are listed on the website of the Gift of Life Donor Program.

Title 20 (the Probate, Estates & Fiduciaries Code) of Pennsylvania statutes, authorizes organ donation upon consent or direction pursuant to unique provisions not parallel to, but similar in outcome to, the Uniform Anatomical Gift Act.

Many medical and humanitarian organizations actively promote organ donation here; and most religions sanction it under certain circumstances. See: PA EE&F Law Blog postings Organ Donation in Pennsylvania (06/14/07), Uniform Anatomical Gift Act in PA Someday? (06/20/07), and Religious Views on Organ Donation (09/11/08).

A need always exists.  Successful transplants renew other lives.  Listen to the program to find out why and how.

I am both a transplant recipient and a designated donor, so I support this movement.  To learn more about organ donation in a pleasant, informative conversation, listen to the program through an online link.

AOPC.org is Dead; Long Live PAcourts.us! Very Tweet!

By September, 2012, the original Internet address of Pennsylvania's Unified Judicial System -- www.aopc.org (which reflected the initials of the Administrative Office of Pennsylvania Courts) -- will be deactivated.

Through the summer, that web address already had redirected users automatically to the updated PA Unified Judicial System (Court) website -- www.pacourts.us. But, beginning in September, that redirection will end.  Those links will be "dead".

Regular users should change the web address in browser “favorites” from www.aopc.org to the successor Internet address -- www.pacourts.us. 

Local court administrators should check their local court rules for any references to the www.aopc.org website, and revise them.  The statewide court rules were already revised to accommodate this change via technical rule amendments.

This change will require me, over an extended span, to revisit old blog entries and update AOPC links, or else those links will be useless.  (Yea, I really look forward to that process.)  In the future, all links on this Blog will relate to the new website address.

There is another noteworthy technological development involving Pennsylvania's courts.  Around June, 2012, AOPC began "tweeting" (via the Twitter online service) notices of proposed rulemaking by the PA Supreme Court's various rule committees. These "tweets" complement the Prothonotary’s past tweets as to actual rule amendments.

For those interested in following the rules committees' proposals when issued, the Twitter account is: @SCOPARules. A general “follow us on Twitter” link appears on the court rules committees’ web page, as follows:

Follow us on Twitter @SCOPARules to receive notification of proposed rulemaking from the rules committees. For the latest available Pennsylvania Supreme Court dispositional orders and opinions, please follow @SupremeCtofPA. For press releases and general information about the Court please follow @PACourts.

Appeal Procedures from PA Orphans' Court Rewritten

Appeals from orders issued by the various Orphans' Court Divisions, of the Courts of Common Pleas in Pennsylvania, are governed, effective February 12, 2012, by revised procedural rules, which were further amended by the Pennsylvania Supreme Court by order dated July 16, 2012.

A completely rewritten Rule 342 ("Appealable Orphans' Court Orders"), of the Pennsylvania Rules of Appellate Procedure (Pa. R.A.P.), was adopted December 29, 2011, in conjunction with an amended PA R.A.P. Rule 311 ("Interlocatory Appeals as of Right") , by the Pennsylvania Supreme Court, applicable to all Orphans’ Court orders entered forty-five days after that adoption.  See:  42 Pa. Bulletin 374 (01/12/12, PDF). 

On July 27, 2012, the Pennsylvania Supreme Court order, dated July 16, 2012, amending both Pa.R.A.P. 311 and 342 and providing for further, minor changes, effective immediately, was submitted for publication to the Pennsylvania Bulletin. See: 42 Pa. Bulletin 4693 (07/28/12, PDF).

The collective revisions contemplate disputed matters in an "estate", "trust", or "guardianship" -- terms defined terms under subsection (b) of Rule 342 -- that have been resolved by a trial court order, from which appeal is sought by a party to Pennsylvania's appellate courts -- first, to the Pennsylvania Superior Court, or, if granted further, to the Pennsylvania Supreme Court.

These rule revisions address trial court-ordered dispositions that are appealable "as of right" from the Orphans' Court Division, as set forth in the revised Pa. R.A.P. 342:

General rule. An appeal may be taken as of right from the following orders of the Orphans’ Court Division:

(1) An order confirming an account, or authorizing or directing a distribution from an estate or trust;

(2) An order determining the validity of a will or trust;

(3) An order interpreting a will or a document that forms the basis of a claim against an estate or trust;

(4) An order interpreting, modifying, reforming or terminating a trust;

(5) An order determining the status of fiduciaries, beneficiaries, or creditors in an estate, trust, or guardianship;

(6) An order determining an interest in real or personal property;

(7) An order issued after an inheritance tax appeal has been taken to the Orphans’ Court pursuant to either 72 Pa.C.S. § 9186(a)(3) or 72 Pa.C.S. § 9188, or after the Orphans’ Court has made a determination of the issue protested after the record has been removed from the Department of Revenue pursuant to 72 Pa.C.S. § 9188(a); or

(8) An order otherwise appealable as provided by Chapter 3 of these rules. [Link added.]

The revised Official Note to Pa. R.A.P. 342 recounts the history since 1992 regarding orders appealable and the failed past efforts towards clarification, and then explains the situations sought to be remedied by the recent sweeping changes:

In 1992, the Supreme Court amended Rule 341 to make clear that, as a general rule, a final order is an order that ends a case as to all claims and all parties. Because of this amendment, many Orphans' Court orders that may have been considered constructive final orders prior to 1992 became unappealable interlocutory orders. Although some Orphans' Court orders were construed by case law to be appealable as collateral orders, see Estate of Petro, 694 A.2d 627 (Pa. Super. 1997), the collateral order doctrine was neither consistently applied nor was it applicable to other Orphans' Court orders that previously had been considered final under the ''final aspect'' doctrine. See, e.g. Estate of Habazin, 679 A.2d 1293 (Pa. Super. 1996).

In response, the Supreme Court revised Rule 342 that initially permitted appeals from Orphans' Court orders concerning distribution even if the order was not considered final under the definition of Rule 341(b). In 2001, Rule 342 was amended to also allow appeals from orders determining an interest in realty or personalty or the status of individuals or entities, in additional to orders of distribution, if the Orphans' Court judge made a determination that the particular order should be treated as final. In 2005, the Supreme Court amended Rule 342 again, adding subdivision (2) to clarify that Rule 342 was not the exclusive method of appealing Orphans' Court orders.

Also, in 2005, the Supreme Court amended Rule 311 to provide for an interlocutory appeal as of right from an order determining the validity of a will or trust. See former Rule 311(a)(8). Such an order needed to be immediately appealable and given finality so that the orderly administration of the estate or trust could proceed appropriately.

Since 2005, it has become apparent that other adversarial disputes arise during the administration of an estate, trust or guardianship, and that orders adjudicating these disputes also must be resolved with finality so that the ordinary and routine administration of the estate, trust or guardianship can continue. See Estate of Stricker, 602 Pa. 54, 63-64, 977 A.2d 1115, 1120 (2009) (Saylor, J., concurring). Experience has proven that the determination of finality procedure in subdivision (1) of Rule 342 is not workable and has been applied inconsistently around the Commonwealth. See id. (citing Commonwealth v. Castillo, 585 Pa. 395, 401, 888 A.2d 775, 779 (2005) (rejecting the exercise of discretion in permitting appeals to proceed)).

Experience has also proven that it is difficult to analogize civil litigation to litigation arising in estate, trust and guardianship administration. The civil proceeding defines the scope of the dispute, but the administration of a trust or estate does not define the scope of the litigation in Orphans' Court. Administration of a trust or an estate continues over a period of time. Litigation in Orphans' Court may arise at some point during the administration, and when it does arise, the dispute needs to be determined promptly and with finality so that the guardianship or the estate or trust administration can then continue properly and orderly. Thus, the traditional notions of finality that are applicable in the context of ongoing civil adversarial proceedings do not correspond to litigation in Orphans' Court.

In order to facilitate orderly administration of estates, trusts and guardianships, the 2011 amendments list certain orders that will be immediately appealable without any requirement that the Orphans' Court make a determination of finality. Orders falling within subdivisions (a)(1)—(7) no longer require the lower court to make a determination of finality. * * *

  The revised Official Note then explains in detail the substantive changes contained in revised PA. R.A.P. 342.  I cannot improve upon this concise and reliable explanation -- other than breaking up the text into shorter paragraphs and emphasizing the subdivision explanations; and so I quote, with highlighting and re-paragraphing applied:

Subdivisions (a)(1)—(7) list orders that are unique to Orphans' Court practice, but closely resemble final orders as defined in Rule 341(b). 

Subdivision (a)(1) provides that the adjudication of any account, even an interim or partial account, is appealable. Previously, only the adjudication of the final account would have been appealable as a final order under Rule 341. The prior limitation has proven unworkable for estate administration taking years and trusts established for generations during which interim and partial accounts may be adjudicated and confirmed. The remainder of subdivision (a)(1) permits appeals from orders of distribution as Rule 342 always has permitted since its initial adoption.

Subdivision (a)(2) is a new placement for orders determining the validity of a will or trust that previously were appealable as interlocutory appeals as of right following the 2005 amendment to Rule 311. See prior Rule 311(a)(8).

Subdivision (a)(3) is a new provision that allows an immediate appeal from an order interpreting a will or other relevant document that forms the basis of a claim asserted against an estate or trust. Such orders can include, among other things, an order determining that a particular individual is or is not a beneficiary or determining if an underlying agreement executed by the decedent during life creates rights against the estate.

Subdivision (a)(4) addresses trusts and is similar to subdivision (a)(3), but also permits immediate appeals from orders modifying, reforming or terminating a trust since such judicial actions are now permitted under 20 Pa.C.S. § 7740 et seq.

Subdivision (a)(5) is intended to clarify prior Rule 342 in several respects: First, an appealable Orphans' Court order concerning the status of individuals or entities means an order determining if an individual or entity is a fiduciary, beneficiary or creditor, such as an order determining if the alleged creditor has a valid claim against the estate. Second, such orders include orders pertaining to trusts and guardianships as well as estates. Finally, this subdivision resolves a conflict in prior appellate court decisions by stating definitively that an order removing or refusing to remove a fiduciary is an immediately appealable order.

Subdivision (a)(6) retains the same language from prior Rule 342.

Subdivision (a)(7) permits appeals of an Orphans' Court order concerning an inheritance tax appraisement, assessment, allowance or disallowance when such order is issued separately and not in conjunction with the adjudication of an account. Sections 9186 and 9188 of Chapter 72 provide three procedures, outside the context of an accounting, whereby either the personal representative or the Department of Revenue may bring before the Orphans' Court a dispute over inheritance taxes imposed. See also Estate of Gail B. Jones, 796 A.2d 1003 (Pa. Super. 2002) (analogizing a petition regarding the apportionment of inheritance taxes to a declaratory judgment petition given that an estate account had not yet been filed). A decision concerning inheritance taxes issued in conjunction with the adjudication of an account would be appealable under subdivision (a)(1). 

In keeping with the 2005 amendment that added subdivision (2) to prior Rule 342, subdivision (a)(8) tracks subdivision (2) of former Rule 342. Subdivision (2) was adopted in response to Estate of Sorber, 2002 Pa. Super. 226, 803 A.2d 767 (2002), a panel decision holding that Rule 342 precluded immediate appeals from orders that would have otherwise been appealable as collateral orders under Rule 313 unless the Orphans' Court judge made a determination of finality under Rule 342.

Subdivision (a)(8) makes clear that Rule 342, as amended, is still not the sole method of appealing an Orphans' Court order and an order not otherwise immediately appealable under Rule 342 may still be immediately appealable if it meets the criteria under another rule in Chapter 3 of these rules. Examples would include injunctions appealable under Rule 311(a)(4), Interlocutory Orders Appealable by Permission under Rules 312 and 1311, Collateral Orders appealable under Rule 313, and an order approving a final accounting which is a true final order under Rule 341. Whether or not such orders require certification or a further determination of finality by the trial court depends on the applicable rule in Chapter 3. Compare Rules 311(a)(4), 313 and 341(c) with Rules 312 and 1311.

The revised Official Note concludes with a stern warning about a failure, under Subsection (c) to appeal, which constitutes a "waiver of all objections" to an order:

Failure to appeal an order that is immediately appealable under subdivisions (a)(1)—(7) of this rule shall constitute a waiver of all objections to such order and may not be raised in any subsequent appeal. See Subdivision (c) of this Rule. The consequences of failing to appeal an Orphans' Court order under (a)(8) will depend on whether such order falls within Rules 311, 312, 313, 1311 or 341.

The revision amended Pa. R.A.P. Rule 311(g) under this concept, to provide as follows:

 (g) Waiver of objections.

       (1) Where an interlocutory order is immediately appealable under this rule, failure to appeal:

             (i) Under Subdivisions (a), (b)(2) or (f) of this rule shall not constitute a waiver of the objection to the order and the objection may be raised on any subsequent appeal in the matter from a determination on the merits.

            (ii) Under Subdivisions (b)(1) or (c) of this rule shall constitute a waiver of all objections to jurisdiction over the person or over the property involved or to venue, etc. and the question of jurisdiction or venue shall not be considered on any subsequent appellate review of the matter.

           (iii) Under Subdivision (e) of this rule shall constitute a waiver of all objections to such orders and any objection may not be raised on any subsequent appeal in the matter from a determination on the merits.

Don't forget another process perhaps necessary post-trial to protect appeal rights from an orphans' court's order -- "Exceptions" -- that may be applicable under local rules.  See:  Pa. Orphans' Court Rule 7.1.

New "Granny Snatching" Law in PA

On July 5, 2012, Pennsylvania Governor Tom Corbett signed House Bill 1720 (Printer's No. 2589) -- commonly (and comically) referenced as the "Granny Snatching bill" -- into state law as Act 108 of 2012, to take effect in 60 days.

Act 108 amends Title 20 (Decedents, Estates and Fiduciaries) of PA Consolidated Statutes, to provide for uniform adult guardianship and protective proceedings jurisdiction.  The final form of that Bill is available on the web, in PDF format, and as a Word document.

Act 108 deals primarily with court-oriented jurisdictional, transfer, and enforcement issues relating to adult guardianships and adult protective proceedings.  For a lengthy explanation about the then-pending bill, with links, see: PA Elder, Estate & Fiduciary Law Blog post, "Granny Snatching" Prohibition Pending in PA (10/25/11).

Act 108 was based upon the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), a national statutory model that received approval at the 2007 annual meeting of the National Conference of Commissioners for Uniform State Laws (NCCUSL).

Already in 2012, Connecticut and Maine adopted it, and seven other states, consider it.  Our nearby sister state, New Jersey, is one of them.  See:  New Jersey Considers Law to Prevent ‘Granny Snatching’, (05/21/12), by Beth Fitzgerald, posted on NJ Spotlight, which analyses how their proposed new law "would alleviate jurisdictional issues when families feud over guardianship".

Before 2012, a majority of more than thirty states adopted it (see map above, which now identifies Pennsylvania as an "enacted" state).

The bill as originally proposed was based upon the model statute, and was revised only slightly for its final version adopted by the Legislature (House: 196-0 on October 26, 2011; and  Senate: 49-0 on June 26, 2012).  For example, the original bill used the uniform act's definition of "conservator" as one who manages property of an adult person, and "guardian" as one who makes personal decisions for another.  In Pennsylvania, instead, Chapter 55 (Incapacitated Persons) uses the term "guardian" for both aspects of surrogate management.

The few revisions added in the amended version of the Bill varied slightly from the model statutory form, but only clarified concepts.

This legislation, which will become effective on September 5, 2012, represents an accomplishment for those who drafted, introduced, advocated, and enacted it.  Its adoption will benefit those inside and outside of Pennsylvania, whose lives and living situations will be touched by guardianship disputes involving adults brought into courts.

Now Pennsylvania Orphans' Court judges will have clear jurisdictional rules, and the Commonwealth's Area Agencies on Aging, as well as private litigants, will have new tools, within the setting of an increasingly uniform state court jurisdictional system, that can expedite remedies for certain kinds of personal dislocations and financial elder abuse.

Family Farms Exempted from PA Inheritance Tax

On July 2, 2012, Governor Tom Corbett signed legislation that, effective after June 30, 2012, exempts working farms and some related agricultural commodities from Pennsylvania Inheritance Tax.  

The Governor's Press Release was posted by PR Newswire under the title Pennsylvania Governor Tom Corbett Ends Burden for Farmers by Eliminating Inheritance Tax (07/01/12):

Pennsylvania farmers can now pass their farms on to their heirs without worrying they will have to pay steep "death taxes" to keep them in the family.

"The death tax has forced too many families to sell their legacy, their land and their way of life," said Governor Corbett. "This tax has put too many farms out of business because it was too expensive for farmers to pass them down to their children. This will happen no more. We intend to save our farms."

Previously when a landowner died, heirs to their farm property had to pay an inheritance tax of 4.5 percent if they were adult children and 12 percent if they were siblings of the deceased.

"The inheritance tax has been a burden on farm families for decades," said Agriculture Secretary George Greig. "By eliminating this tax, Governor Corbett solidified his commitment to Pennsylvania farm families, and to keeping farmers farming for generations. This law provides farmers the opportunity to save thousands of dollars in inheritance tax, allowing them to reinvest in their agricultural operations." * * *

There was some confusion whether the bill was signed into law on June 30th, when first announced, or later as a part of the budget bill signed by the Governor on July 2nd.  A Press Release by the Governor's Office issued on July 3, 2012, confirms that the relevant bill was signed on July 2nd.  However, the provisions related to this new exemption "shall apply to the estates of decedents dying after June 30, 2012."

The tax relief originally was introduced in the House as House Bill 1864, PN 2401, by Representative Stephen Bloom, of Cumberland County, PA, as sponsored by many other representatives.  That bill provided, simply:

Section 2111.  Transfers Not Subject to Tax.‑‑* * *

(s)  A transfer of an agricultural commodity, agricultural conservation easement, agricultural reserve, agricultural use property or a forest reserve, as those terms are defined in section 2122(a), to lineal descendants or siblings is exempt from inheritance tax.

The objectives of HB 1864 were supported by the Pennsylvania Farm Bureau, which provided testimony on October 17, 2011 to the PA House Finance Committee in support of Inheritance Tax reduction or elimination, including the proposed exemptions provided in HB 1864.  See: Testimony (PDF, 6 pages).

That Bill's objectives became incorporated into the omnibus budget bill, HB 761, PN 3894.  

This lineage was described by the House Republican Caucus in a posted article, Inheritance Tax Relief Measure Heads to Governor’s Desk (06/30/12):

A measure to end the financial burden of Pennsylvania’s inheritance tax on surviving farm family members has become part of the 2012-13 state budget package, which was sent to the governor tonight, said Rep. Stephen Bloom (R-Cumberland).

Bloom’s original bill, House Bill 1864, would exempt transfers of agricultural assets from the Pennsylvania inheritance tax when the receiving heir is a sibling or child of the deceased farmer. The exemption was incorporated into the omnibus Pennsylvania Tax Code bill (House Bill 761) by the Senate this week and passed finally by the House today.

“This measure will prevent the state from continuing to penalize farm families in Pennsylvania during a time when they are most economically vulnerable,” said Bloom. “By eliminating the death tax on transfers of ag assets, we can help farm families keep farming successfully in future generations.”

In addition, Bloom’s initiative would extend the new inheritance tax exemption to farm commodities, such as livestock and crops. It would also exempt from the death tax forest reserves that are passed along from a parent to a child or the parent’s brother or sister.

“This measure is a huge win for Pennsylvania farm families,” said Bloom. “Too many family farms have been divided up and sold when a loved one dies, because surviving family members are unable to pay the burdensome inheritance tax on their farm property.”

The House originally approved Bloom’s measure in December, on a 190-1 bipartisan vote. Companion legislation introduced by Sen. Dominic Pileggi (R-Chester/Delaware) was also amended into the Pennsylvania Tax Code, which was sent to the governor as part of the 2012-13 budget package tonight. * * *

Section 23 of HB 761, PN 3894, which became Act No. 85 of 2012, effective as of June 30, 2012, now provides, in part:

Section 2111 of the act is amended by adding subsections to read:

Section 2111.  Transfers Not Subject to Tax.‑‑* * *

(s)  A transfer of real estate devoted to the business of agriculture between members of the same family, provided that after the transfer the real estate continues to be devoted to the business of agriculture for a period of seven years beyond the transferor's date of death and the real estate derives a yearly gross income of at least two thousand dollars ($2,000), provided that:

(1)  Any tract of land under this article which is no longer devoted to the business of agriculture within seven years beyond the transferor's date of death shall be subject to inheritance tax due the Commonwealth under section 2107, in the amount that would have been paid or payable on the basis of valuation authorized under section 2121 for nonexempt transfers of property, plus interest thereon accruing as of the transferor's date of death, at the rate established in section 2143.

(2)  Any tax imposed under section 2107 shall be a lien in favor of the Commonwealth upon the property no longer being devoted to agricultural use, collectible in the manner provided for by law for the collection of delinquent real estate taxes, as well as the personal obligation of the owner of the property at the time of the change of use.

(3)  Every owner of real estate exempt under this subsection shall certify to the department on an annual basis that the land qualifies for this exemption and shall notify the department within thirty days of any transaction or occurrence causing the real estate to fail to qualify for the exemption. Each year the department shall inform all owners of their obligation to provide an annual certification under this subclause. This certification and notification shall be completed in the form and manner as provided by the department.

(s.1)  A transfer of an agricultural commodity, agricultural conservation easement, agricultural reserve, agricultural use property or a forest reserve, as those terms are defined in section 2122(a), to lineal descendants or siblings is exempt from inheritance tax. [Emphasis added.]

Act 85 includes some new definitions relevant to the exemptions:

Section 2102.  Definitions.‑‑The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

* * *

"Business of agriculture."  The term shall include the leasing to members of the same family or the leasing to a corporation or association owned by members of the same family of property which is directly and principally used for agricultural purposes. The business of agriculture shall not be deemed to include:

(1)  recreational activities such as, but not limited to, hunting, fishing, camping, skiing, show competition or racing;

(2)  the raising, breeding or training of game animals or game birds, fish, cats, dogs or pets or animals intended for use in sporting or recreational activities;

(3)  fur farming;

(4)  stockyard and slaughterhouse operations; or

(5)  manufacturing or processing operations of any kind.

* * *

"Members of the same family."  Any individual, such individual's brothers and sisters, the brothers and sisters of such individual's parents and grandparents, the ancestors and lineal descendents of any of the foregoing, a spouse of any of the foregoing and the estate of any of the foregoing. Individuals related by the half blood or legal adoption shall be treated as if they were related by the whole blood.

The effective date of the act is stated as follows in Section 30 (7) of the Act:  "The amendment or addition of sections 2102 and 2111(s) and (s.1) of the act shall apply to the estates of decedents dying after June 30, 2012."

Note: Thanks to Kathleen B. Murren, Esq., Professor, Legal Studies Chair, Legal Studies Department, Harrisburg Area Community College, for providing an initial inquiry to me, which led to my blog posting.

Today is WEAAD

Today, Friday, June 15, 2012, is the seventh annual World Elder Abuse Awareness Day (WEAAD).

The goal of WEAAD is to increase awareness of elder abuse throughout the world and bring attention for the need for prevention and action. Every year, millions of older adults are abused, neglected or exploited, with many cases never being reported. 

WEAAD also supports the United Nations International Plan of Action, which identifies elder abuse as a public health and human rights issue.

Yesterday, the White House Symposium on Elder Abuse was held in recognition of WEAAD. The daylong symposium featured national experts and government officials in presentations and panel discussions that were broadcast live on the White House website from 9-11:30 AM and 1:30-4:00 PM.

In the afternoon, some Pennsylvania attendees commented on the widespread and vicious nature of financial elder abuse, and their efforts to combat it in Eastern Pennsylvania.

On the National Commission on Elder Abuse's “Take a Stand” webpage, you can learn about other WEAAD events occurring across the country, searchable  by state.

Today, in Pennsylvania, in recognition of WEAAD, two organizations from Eastern Pennsylvania -- CARIE and the SeniorLAW Center, of Philadelphia -- hold their Elder Justice: Protection and Advocacy Technical Assistance Regional Conference in State College at The Penn Stater Conference Center.

The [Conference] will provide an enhanced understanding of Elder Justice in Pennsylvania. 

The Conference will also provide an opportunity for victim service providers and allied professionals from the surrounding counties to enhance their skills and network, increase collaboration, share best practices, and learn about emerging victim advocacy trends. 

David R. Hoffman, Esquire will deliver the keynote speech presenting on the State Perspectives of the Adult Protective Services System. 

The remainder of the agenda will include an Elder Abuse Task Force presentation, a leadership panel, direct services panel and break-out exercises involving a case study for each group to problem solve by learning about and utilizing the services of multiple agencies in order to build networks and strengthen victim services in each community. * * *

The professional groups invited to the Conference in State College include: Community Social Services providers (non-aging), Aging Services Providers, Adult Protective Services, Domestic Violence Service Providers, Medical/health Professionals, Faith Community, Law enforcement, Community Legal providers/network, Other Criminal Justice Professionals, Local Government, and Community Leaders. 

You can view or download Mr. Hoffman's 16-slide PowerPoint presentation, posted by CARIE.  His overview provides statistics,  definitions, situations, approaches, resources, and needs.

You may also be interested to view the elder abuse resources posted by the Center for Elders and the Courts, including its Elder Abuse Curriculum for State Judicial Educators and its new Elder Abuse Toolkit, which was promised to be available today, in recognition of WEAAD.

Lawyer's "Own Story" -- Caring for an Aged Parent

Attorney Mark Mateya, of Carlisle (Cumberland County), PA, writes a simple personal blog, hosted on Blogger, entitled Taking Care of Your Parents: My Own Story.

I've known Mark probably for fifteen years.  I respect him as a lawyer.  I did not know, however, that last year in May, he stepped out of that professional role and began posting his personal experiences on a blog about his family, and, specifically, about his elderly mother living alone.  

He invited readers:  "Please follow our journey as my family and I make plans for my aging mother."

His very first entry, on May 11, 2011, set the situation and noted challenges:

We just celebrated mother’s day in our country. Taking care of Mom this year, while she is still at home, is made a little easier by the loving support she enjoys. Mom is in her eighties, and her three sons, of whom I am the baby, give her as much support as possible. Two of us are farther afield, so we each take a little of the financial burden on us to try to compensate for the distance we feel from her. * * *

Five days later, he clarified his blog's purpose:

In this blog, I hope to explore my own adventure, not as much as an estate planning attorney, but more as a professional who is dealing with these considerations on a personal level. * * *

Mark posted about twenty entries during the past year on his Blog.  His entries read like a personal diary.  I admire his openness, conviction, humor, and emotion.  He writes about medical ailments, risks in a home, reduced self-care, prideful forgetfulness, limited mobility, confused communications, role reversals, financial accountability, potentials for abuse, and other concerns that arise naturally in the still-mutual lives of his widowed mid-eighties mother, and of himself as her devoted son.

I recall similar concerns in our family circumstances twenty years ago, which had extended for years before.  Those circumstances defined what I did and who I was, then; and those experiences formed what I do and who I am, now.

So I know that we read less of a travelogue, and more of a personal development memoir.  Mark may not yet recognize that yet. Also, he has not yet encountered the most turbulent times, including severe decline, death, mourning, and recovery.  Those events may be too difficult to relate when arising later.  Whether publicly or privately, I encourage Mark to write his thoughts during those times too.

Mark hopes that others will read his accounts, and find support in their own situations.  He is trained and disciplined, and maintains a good heart.  He faces family challenges not easily quantified or solved during a loved one's aging and decline.  Thus, he is not too different from me, or from so many of us.

On the professional side, Mark also posts onto a law firm blog simply entitled Mateya Law Firm.  There, he focuses upon powers of attorney in Pennsylvania.  He understands that abuse that can, and often does, occur under a power of attorney.  Where motives are not pure and selfless, where thinking is not clear or actions not accountable, where advocacy refutes cooperation and consensus, and where change is fought not planned, a POA can become a weapon of destruction.

How I wish that all individual holders of a power of attorney for an elderly parent would have the character and caring displayed in Mark's blog. 

Pick just such a family member when you execute your power of attorney.

Filial Support of Indigent Parents in PA

On Tuesday, June 12, 2012, WITF-FM's Radio Smart Talk will host a discussion about the legal concept of "filial support" and its possible consequences for Pennsylvania's sons and daughters with aged parents who require care, but who can't pay.

"Filial" is defined by the Merriam-Webster dictionary as 1: of, relating to, or befitting a son or daughter, or 2: having or assuming the relation of a child or offspring.  

However, the concept of "benefit" to a son or daughter becomes reversed, if you add a duty of "support" under a state statute.  The result?  Adult children (if not abandoned in their youth) owe an ongoing duty of support to parents who have become indigent; and they must defend against claims by their parent's care-giving creditors in court.

On May 7, 2012, a three-Judge Pennsylvania Superior Court panel issued an opinion and order in Healthcare Retirement Corporation of America v. Pittas (PDF, 10 pages).  The ruling upheld a judgment rendered by a Lehigh County, PA trial court, against a son for his mother's unpaid debt of $92,943.41, owed to a institution for her medical and residential care.

The charges resulted from treatment needed after the mother was injured in a car accident.  The care extended six months before she withdrew from the facility, and then left the country.  The case at trial was decided while an application for Medicaid coverage was pending.

The Court's opinion noted the essential facts:

On or about September 24, 2007, after completing rehabilitation for injuries sustained in a car accident, Appellant’s mother was transferred to an HCR facility for skilled nursing care and treatment.  Appellant’s mother resided in the facility and was treated by HCR until March of 2008.  In March of 2008 Appellant’s mother withdrew from the HCR facility and relocated to Greece.

A large portion of the bills incurred by Appellant’s mother due and owing to HCR went unpaid.  As a result, on or about May 12, 2008, HCR instituted a filial support action against Appellant.  Pursuant to 23 Pa.C.S.A. § 4603, entitled “Relatives’ liability,” HCR sought to hold Appellant liable for the outstanding debt incurred as a result of his mother’s treatment and care.

The parties submitted the case to arbitration, whereupon a three member arbitration panel found in favor of Appellant.  HCR appealed the arbitration award to the trial court.  The trial court held a three-day non-jury trial, after which it entered a verdict in favor of HCR in the amount of $92,943.41. * * *

The Court referenced portions of the applicable statute, 23 Pa.C.S.A. § 4603 (unofficial version posted online by OneCLE), which provides:

(a) Liability. --
    (1) Except as set forth in paragraph (2), all of the following individuals have the responsibility to care for and maintain or financially assist an indigent person, regardless of whether the indigent person is a public charge:   

        (i) The spouse of the indigent person.
        (ii) A child of the indigent person.
        (iii) A parent of the indigent person.

    (2) Paragraph (1) does not apply in any of the following cases:
        (i) If an individual does not have sufficient financial ability to support the indigent person.
        (ii) A child shall not be liable for the support of a parent who abandoned the child and persisted in the abandonment for a period of ten years during the child's minority. * * *

When is a person "indigent"?  The Court noted:

What it means to be “indigent” is not defined within the applicable statute. Therefore, in  applying Section 4603, our Courts have applied the common-law definition of indigence.    In  so  doing,  we  have  held that:     

the indigent person need not be helpless and in extreme want, so completely destitute of property, as to require assistance from the public.  Indigent persons are those who do not have sufficient means to pay for their own care and maintenance.  “Indigent” includes, but is not limited to, those who are completely destitute and helpless.  It also encompasses those persons who have some limited means, but whose means are not sufficient to adequately provide for their maintenance and support. 

 Savoy v. Savoy, 641 A.2d 596, 599-600 (Pa. Super. 1994), quoting Verna v. Verna, 432 A.2d 630, 633 (Pa. Super. 1981). [Unofficial case links added.]

Any adult child whose parent is now, or might become "indigent", might be just an accident or medical emergency away from becoming liable for that parent's care under the cited statute and its application by the Pennsylvania courts in a debt collection lawsuit commenced by a creditor.

Concerns about the ruling were reported in an article entitled Pennsylvania Man Appeals to Court to Avoid Paying Mom's $93,000 Nursing Home Bill, by Susanna Kim, posted May 23, 2012, by ABC News.  Many readers' comments to the article reflect deep personal concerns and even anger.  See also: PA EE&F Law Blog posts "Filial Support" in PA? Really?!? (07/28/08); and PA's "Filial Responsibility" Law in the News (07/16/09).

On May 25, 2012, The Dickinson School of Law of Penn State University highlighted on its home page a link to a four-minute video presentation posted on YouTube, entitled Elder law expert Katherine Pearson explains new family support decision in PA and its policy issues.

A dramatic holding in a nursing home debt collection case by the Pennsylvania Superior Court "breaks new ground," explains elder law expert and Penn State Law professor Katherine Pearson.

In Health Care & Retirement Corporation of America v. Pittas, the nursing home obtained a judgment against an adult son for the cost of his mother's care with neither a contractual obligation nor "fault" on the son's part.

Professor Katherine C. Pearson briefly and conversationally addresses these questions in the video:

• What is the history of the filial support statute in Pennsylvania?
• What is so dramatic about the Superior Court's application of this law in the Pittas case?
• What are the consequences of this decision?
• What's wrong with requiring adults to support their parents?
• What other issues do you see?
• What policy questions does this case raise?

Katherine is an expert on "filial support" in Pennsylvania. She wrote a chapter on the topic, entitled Filial Support Obligations in Pennsylvania: Adult Children, Parents and Spouses, in the book, Elder Law in Pennsylvania (Jeffrey Marshall, ed., 3d ed. 2011), published by the Pennsylvania Bar Institute.

Just last Friday, June 8, 2012, she posted a more sweeping analysis of "filial support" laws online, including a comparison of each state's current laws.  Her article, which was accepted for publication by the University of Illinois School of Law's Elder Law Journal for its Fall, 2012 issue, is entitled Filial Support Laws in the Modern Era: Domestic and International Comparison of Enforcement Practices for Laws Requiring Adult Children to Support Indigent Parents.  That academic paper (Abstract No. 2079753) can be downloaded from the Social Science Research Network (SSRN) free (32 pages, PDF).

In early April, before the Pittas decision was issued, Katherine gave an extended interview about "filial support", which was broadcast on the Australian radio show Encounter.

During the program “Dutiful Sons and Daughters” Professor Katherine Pearson discusses filial support laws trends in the U.S. during a panel dialog. * * * A recording of “Dutiful Sons and Daughters” is available on Radio National, the largest single network in the country. A recording of an extended interview with Pearson can be downloaded from Radio National’s website. * * *

Tomorrow's Radio Smart Talk presentation, during a fifty-minute discussion, likely will consider these questions and more.  I hope that Katherine will be a guest.  The program will be broadcast at 9:00 AM and again at 7:00 PM.  I will update this posting afterwards to include both a web link and a podcast link for the recorded presentation.

Update: 06/12/2012 @ 11:30 AM:

I guessed correctly:  Professor Katherine Pearson was one of the panelists.  The other panelist was a local professional colleague and friend, Attorney Jan L. Brown, of Harrisburg, PA.  The program, entitled Who is responsible to pay for long-term care?, broadcast from 9 to 10 AM.  It will be rebroadcast at 7 PM this evening.

A recording of the program is available now.  The discussion among host Scott LaMar, Katherine, and Jan can be heard online by downloading an MP3 file (20.8 MB) posted at this link: http://witf.vo.llnwd.net/o35/smarttalk/radiosmarttalk/RST_June122012.mp3. 

Katherine and Jan concisely explained the legal principles operating in the Pittas case (now the subject of an en banc reconsideration petition filed with the PA Superior Court).  They also placed it into the context of Pennsylvania domestic relations law.  Only Pennsylvania and South Dakota statutes and case decisions will sanction such third-party collection actions against an adult child for long-term care obligations incurred by an indigent parent, without considering situational "equities".

They addressed consequences and planning considerations for families of indigent long-term care residents.  The callers' comments ventured further, however, questioning fairness of responsibility for an estranged parent's medical care, oppressive debt collection efforts of institutions, and selective application by institutions.  Katherine also mentioned the cost of litigation in defending such claims, which alone can be staggering.

The discussion then focused on long-term care insurance.  Both federal and state governments have promoted LTC coverage for the past few years as a viable individual hedge against future inability to support long-term care.  

However, LTC coverage has become prohibitively expensive for the middle class.  Two major issuers -- John Hancock and Met Life -- discontinued their LTC offerings.

Even after an individual's purchase and ongoing premium payments, LTC insurance coverage might be revealed, when claim would be made, as unreliable or inapplicable.  LTC coverage, as a future source of support, may be a "bet" more than a "hedge", due to contract limitations, changes in medical services and billings, or illiquidity of an insurer.

Katherine and Jan considered many questions and offered some tips.  However, given flux in applicable law, distinctive facts in individual situations, processing complexities, and reduced government funding, there can be no definitive general answers regarding long-term care provisions, much less specific predictions as to personal financial liability.

I heartily recommend this program for listening by lawyers and laypersons alike.

Top Ten Reasons to Join "Wills for Heroes"

I write this blog entry on a Saturday morning at the Widener University School of Law (Harrisburg Campus) during a "Wills for Heroes" session, which offers free wills and other estate planning documents to first responders and their spouses or domestic partners.

Document preparation is accomplished by volunteer lawyers using custom-designed legal drafting software.  Client execution of documents occurs before volunteer notaries and law student witnesses.  Conduct of the entire process is guided by experienced staff.

This session is co-sponsored by the Dauphin County Bar Association and the Pennsylvania Bar Association, Young Lawyer's Division, and is supported by some benefactor organizations.  See: Brochure, Wills for Heroes Pennsylvania (PDF, 2 pages).

I followed this program for many years, but only became involved personally in 2011. See: PA Bar Promotes "Wills for Heroes" Further (07/18/11); "Wills for Heroes" Workshops Multiply in PA & DE (08/03/10); PBA's Young Lawyers Sponsor "Wills for Heroes" (05/06/09); and Firefighters, First Responders, and Free Wills (05/15/08).

This is the second such event that I attended at WLS-Harrisburg.  I participated in a similar, but much larger and longer session held here on a Saturday in mid-November, 2011.  I served as an "expert" on demand, discussing specific concerns or offering document solutions.  

Those five pro bono hours were shared with experienced local lawyers, enthusiastic second- and third-year law students, and efficient notaries -- all volunteers.  Our activities were organized by PBA staff.  Each participant was devoted to producing a set of individualized last wills, durable powers of attorney, and health care directives to worthy non-paying clients -- first responders and their life mates.

The first responder clientele had qualified for such pro bono legal services as firefighters, police officers, paramedics, corrections personnel, or probation officers, employed by or volunteering through a federal, state, or local government, or their related agencies and public service associations.  

Most first responders brought a spouse.  Some even brought their young children, who played with toys in a special area.  

The first responders had attended an orientation session or had received an explanation package previously.  The objectives, benefits, and limitations of the program were explained.  

An estate planning questionnaire was distributed for their completion in advance of their scheduled interview at the session.  Most had completed that questionnaire; but some arrived sheepishly in hopes of completing a blank one during their interview with a lawyer.  Either way was okay.

The process proceeded past sign-in, into a personal, confidential interview with a lawyer seated with a portable computer at a "station".  The lawyer then entered data from the questionnaire -- supplemented by responses during the interview -- into document assembly software specifically designed for the WFH program.  Special concerns could be addressed, within limits.  

Next, document drafts were printed, reviewed by the lawyer and clients, and revised if necessary.  Final documents, together with a representation letter (as to limited engagement and then termination of that professional relationship) and a post-execution instruction letter, were produced on laser printers.

The clients carried their document packages to a square table that appeared to host a bridge game looking for a fourth player.  The notary and two witnesses proceeded through the signing formalities with the clients.

An hour or so after signing in, the clients left with free, personalized, dependable estate and personal planning documents resulting from their intentional planning with professional implementation.

The benefits to the first providers are unquestionable and valuable.  But what are the benefits to the other participants -- the volunteer legal services providers?  

In keeping with a tradition of making Top Ten lists, I offer the top ten reasons to volunteer at a Wills for Heroes session in your area: 

#10: You can join hundreds of lawyers in many states who have participated in this program since 2001.

#9: You can eat free food -- donuts and coffee for breakfast, or soft pretzels, pizza, and soda for lunch -- depending upon your shift.

#8:  For lawyers, you can meet yourself years ago as a law student, or, for law students, you can meet yourself years from now as a lawyer, and then interact with your doppelgänger.

#7:  You can get your name/face in a newsletter or newspaper, or perhaps even on television -- but only if you sign the media consent form -- since such sessions often become local news.

#6:  You can brush up on estate planning law during the one-hour participants' orientation session offered before clients arrive.

#5:  You can learn about document assembly software, which is checklist-oriented and data-entry based, but which transfers a set of documents into standard word processing software.

#4:  You can hone your people skills in a safe and supervised environment.

#3:  For lawyers, you can obtain pro bono service credit and recognition.

#2:  You can meet some special, dedicated people --  the first responders -- as short-term clients.

and the best reason to volunteer at a Wills for Heroes session in your area -- particularly one sponsored by the Pennsylvania Bar Association -- is . . .

#1:  You can help first responders, who already work daily to help all of us.

Graphic reproduced from the Lawyers and Settlements Blog

Update:  06/12/12:

I noticed that the Wills for Heroes website linked to this post in its "News" section.  I'm pleased to be a part of their promotion of this worthwhile Program.